Carpenter v. New York Trust Co. — 221 N.Y. 614

Majority

p. 614

Orlando T. Carpenter, as Administrator with the Will Annexed of Caroline L. Carpenter, Deceased, Plaintiff, v. The New York Trust Company et al., Defendants. In the Matter of the Petition of James Dunne et al., Appellants; Charles Rush et al., as Executors of Reese Carpenter, Deceased, et al., Respondents.

(Argued June 11, 1917;

decided July 11, 1917.)

Headnote

Carpenters v. N. Y. Trust Co., 177 App. Div. 914 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered

p. 615

March 16, 1917, which affirmed an order of Special Term denying a motion to have determined and enforced an attorneys’ lien on the ground that the proceeding was premature and that under their retainer before the attorneys can enforce their lien there must be a final judgment. The plaintiff .entered into an agreement with his attorneys to pay them a sum equal to fifty per cent of any recovery that might be obtained in proceedings against the defendants. The agreement provided that said attorneys were to institute, prosecute and maintain such action or actions, proceeding or proceedings as to them may seem advisable. An action was instituted which resulted in a decree favorable to the plaintiff. The decree, among other things, provided that the attorneys’ lien, pursuant to the contract of retainer, should be enforced as against the amount awarded under the decree to the plaintiff. Upon appeal to the Appellate Division the judgment was modified so as to strike therefrom any provision for the payment of the attorneys under their lien as not properly being a part of the issues in the action. An appeal from such judgment has been taken to the Court of Appeals.

James Dunne for appellants.

Michael Kirtland for Charles Rush et al., as executors, respondents.

Edmund J. Donegan and Leonidas Dennis for plaintiff, respondent.

Order affirming the order of Special Term, which dismissed the proceeding as premature without prejudice to any proceedings that might be instituted after the action has been finally disposed of, affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Chase, Collin, Hogan, Cardozo, Pound and Andrews, JJ.